OPA says SPD officer used excessive force against protester in new batch of findings

Oct 23, 2020, 11:14 AM | Updated: 2:48 pm
Seattle police, consent decree, excessive force...
Seattle police during a recent protest. (Getty Images)
(Getty Images)

Since protests started in late May, Seattle’s Office of Police Accountability has received nearly 20,000 complaints against SPD and its officers, which have resulted in the opening of 128 investigations and counting.

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Last month, OPA Director Andrew Myerberg released the first set of findings in five cases, which amounted to a mixed bag of sustained and un-sustained findings in the various complaints filed. That included an un-sustained finding in the case of a young boy pepper sprayed during a protest that was caught on video and went viral, but did not, in Myerberg’s determination, result from wrongdoing on the part of any officers.

On Thursday, Myerberg released the second batch of findings, which included another five cases and yet another mixed bag, with two sustained findings and three others not sustained.

The first case involves an allegation of excessive force against two officers during the first night of protests in Seattle on May 29, just days after the killing of George Floyd.

The OPA received many complaints about a protester being repeatedly punched by police while on the ground and video of the incident was widely circulated on social media. In looking at the video, Myerberg said the evidence was clear and led to a sustained excessive force finding against one of the officers.

Some protesters had engaged in significant property damage in the International District during the event, leading cops to direct protesters not to go below 10th Avenue, and to stay away from the downtown corridor. But one demonstrator ignored the order, and walked around officers to go down the hill. When an officer moved toward the man, there was a scuffle with the demonstrator pushing the cop and grabbing his baton, according to video of the incident Myerberg’s team reviewed.

That’s when officers decided to make an arrest, and both officers start struggling with the man on the ground to get him into custody.

“This was pretty clear from the video that the person on the ground, you can see the right hand has a bottle in it and it goes up and swings toward the officers,” Myerberg said.

The bottle hits the first officer in the chest and knocks off his body camera, but they could not tell from the video whether it hit the second cop in the shoulder as the officer claimed. But whether it hit them or not was really irrelevant, according to Myerberg, because once the man swung the bottle toward them, the threat was established and officers had justification to use force to stop the threat.

The OPA sustained the allegation of excessive force against the second officer in this case, but not the first. While both cops punched the protester during the struggle, there was a significant difference in the timing and level of force.

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The first officer “punches for the first time about five seconds after the bottle comes up,” Myerberg explained. “So there’s really an immediate reaction that bottle’s swinging up toward him, and then he punches again about a second afterwards. After that point, no more force used by that first officer.”

But video showed the second officer punches for the first time about two and a half seconds after the bottle is swung up, and continues to deliver punches for about six seconds after that.

“We found that while some force was warranted by that second officer, the time that lapsed from the immediacy of the threat being quelled, then the continuation of that six to eight punches was excessive, as it just wasn’t proportional given that that threat was no longer imminent,” Myerberg said.

In a complaint filed over an incident in another demonstration on June 7, the OPA also sustained an excessive force complaint against an officer who Myerberg said video evidence showed, clearly pushed a protester to the ground twice causing an injury to their head.

Several bicycle officers wanted to get out of a fence barricade on Capitol Hill, and asked demonstrators laying in their path to move; they refused. The officers decided to pick the protesters up and move them to the other side and arrest them. As they tried to handcuff one of them, the protester claimed the cop slammed his head into the ground.

Body camera video was too close up to be helpful, but a demonstrator handed footage over that, after being slowed way down, showed the officer didn’t realize at least one of the protesters arms was stuck in their backpack strap.

“So what happens is the officer pulls the arm out and then with the other hand pushes the complainant down to the ground twice and this causes the complainant’s head, really the face, to make contact with the ground and causes some bruising and scrapes on the face,” explained Myerberg.

“The question though, is, was that force, that push to the ground — and a fairly significant push to the ground — was that proportional given that the complainant posed no threat, that there’s no resistance, no physical threat? It’s not like the other case where you can see the complainant is actively trying to hit the officers. This complainant is static. So what force is proportional? And in our mind, really not a lot of force is proportional,” explained Myerberg, noting that even if it was inadvertent, the push caused a fairly significant amount of injury to the protester’s face.

“So we deemed it to be un-proportional under the circumstances, and as such excessive,” he said, explaining that the video was very helpful once they were able to slow and down and really slow down the force, and parse through the incident.

The other three cases were all not sustained.

In one, a woman claimed an SPD officer pointed a rifle at her during a demonstration even though she said she posed no threat, let alone a deadly threat. She also said she tried to talk to the officers about excessive force that had been used by police during the demonstrations but got no response, which she felt was unprofessional.

OPA investigated and found the unprofessional claim was unfounded. On the rifle issue, they reviewed body worn video and found no evidence that any SPD officer pointed a rifle at anyone, however, they did learn someone from Washington State Patrol was there pointing a rifle that fired rubber bullets toward the crowd, and believed that may be who the protester saw, but couldn’t definitively prove that, or that another SPD officer did not point a rifle. That left the case finding as inconclusive.

A complaint filed by a woman arrested for crossing the East Precinct barricade on June 5, later claimed she was falsely arrested because of her Chinook heritage, making her a victim of biased policing as she was the only one arrested, and that she was not read her Miranda rights and was then improperly transported by ambulance.

Officers called for the ambulance after growing concerns that she was in a mental health crisis. OPA found body camera video showing her repeatedly talking about cops harvesting the organs of people they arrest and talking about being worried they’d also do it to her. The OPA found she was the only one arrested because she was the only one to cross the barricade.

The final case involved complaints from two protesters claiming one officer abused his discretion by waving a patrol car through to follow demonstrators, including one who was kneeling in the street. They also claimed another officer used excessive force by pushing one of them down. The OPA found body worn video and other camera evidence that easily disproved all of that.

The OPA also updates the findings on its dashboard here.

In the two cases with sustained findings of excessive force, disciplinary decisions will be decided by interim Seattle Police Chief Adrian Diaz.

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OPA says SPD officer used excessive force against protester in new batch of findings